Probate in Ontario FAQs: What is it? How Long Does it Take? When is it Needed?
What is Probate in Ontario?
Probate is a process where the court gives or confirms the authority of someone to act as an estate trustee. Where there is a Will, the court will also ensure the Will is valid. A loved one of the deceased or a named executor in a Will starts the process by submitting documents to the court (which is outlined in detail later on). The court will then approve the Will (if there is one) and allow the estate trustee to start executing on it.
Generally, a Will is only valid if it has been:
Physically signed at the end by the person who made the Will and by two witnesses
Created by a person of sound mind
If the person who passed away didn’t have a Will in place, a loved one will need to apply to the court to be given the authority to act as the executor. The executor will be responsible for dividing the estate according to the rules in the province.
The only person with any legal authority to act on an estate (including managing the estate, distributing assets, or overseeing any trusts that assets are left in for longer periods of time) is an estate trustee. Probate gives the estate trustee the authority to act on the estate.
Do All Wills Have to Go Through Probate?
Nope!
Most estates in Ontario do require going through probate, especially when there are significant assets involved. Probate is less common when the estate is of limited value. As an estate gets more complicated, the likelihood of requiring probate tends to increase.
If you are an estate trustee, it can be a good idea to speak directly with the institutions where the deceased’s assets and accounts are being held. They can let you know whether they will require probate in order to move those assets into the name of the deceased.
When Does Probate Happen in Ontario?
Probate can only take place after somebody has passed away.
It happens when somebody fills out an application for a grant of probate, allowing an executor to act on behalf of the deceased.
How Long Does Probate Take in Ontario?
There are many factors at play in determining how long the probate process can be. It can certainly take several months for a Certificate of Appointment of Estate Trustee to be issued. However, this process may take longer in the case of a more complicated estate.
What is a Certificate of Appointment of an Estate Trustee?
In Ontario, the Certificate of Appointment of Estate Trustee is the document you get if the application for probate is successful.
There are two different estate certificates you can get when applying for probate:
A Small Estate Certificate – if the value of the estate is at most $150,000
A Certificate of Appointment of Estate Trustee – you must apply for this if the estate is valued higher than $150,000
How Do I Apply for Probate?
To apply for probate in Ontario, you can apply to the Ontario Superior Court of Justice for either certificates mentioned above.
You will need to submit the following documents:
Proof of death
The Last Will and Testament of the deceased, if they had one
Any additional information that pertains to the Will
Court forms that outline the deceased’s assets and beneficiaries
Are There Probate Fees in Ontario?
Yes, there are fees tied to probate in Ontario. The fees are:
$0 for every $1,000 of assets up to $50,000
$15 on every $1,000 of assets above $50,000
Put another way, for anything above $50,000, probate fees are 1.5% of the value of the estate.
To get the most accurate breakdown of what probate fees would be in your specific situation, the Ontario Government has a tool that breaks it down based on your inputs. Simply enter your estate value and get an estimate.
Can I Avoid Probate in Ontario?
Many people worry about the cost of probate. With a large and complicated estate, the fees can add up quickly. With some preparation, you can minimize your chances of going through probate in Ontario, or alternatively, you can arrange for certain assets to pass outside of the estate, thereby avoiding probate on those assets.
Here are some ways to improve the chances:
Have joint ownership in place for shared assets.
When assets go directly to another owner, you don’t need them to go through probate.
Ensure your Will is legally binding.
This means using a proper Will service or working with a lawyer. If a Will isn’t legally binding (missing signatures, for example), probate is necessary to figure out how to divide up your assets.
Ensure beneficiaries of life insurance are named directly in the policy.
This allows the death benefit to be paid directly to beneficiaries, instead of being divided up as a part of the estate. It makes for a less complicated estate and an even smoother process for your beneficiaries — which is arguably the most important part of all of this preparation. Make sure to have primary and secondary beneficiaries, in case your primary beneficiary passes away.
Consult a lawyer to receive professional advice.
Final Thoughts on Probate in Ontario
Losing a loved one is exhausting, and the processes after can feel like putting together a puzzle. With this article, the probate process in Ontario will at least be a bit easier to understand, letting you focus more on what matters when the time comes.
Let Epilogue Wills help you simplify your estate planning. You can have a legally binding Will made online in 20 minutes or less, with free unlimited updates as your life changes — all with no hidden fees!
